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48 Harv. Int'l L.J. 121 (2007)
Constitutional Limits on Extraterritorial Jurisdiction: Terrorism and the Intersection of National and International Law

handle is hein.journals/hilj48 and id is 127 raw text is: VOLUME 48, NUMBER 1, WINTER 2007 Constitutional Limits on Extraterritorial Jurisdiction: Terrorism and the Intersection of National and International Law Anthony J. Colangelo* INTRODUCTION The United States, like many nation-states, presently claims the authority to project its criminal laws beyond its territorial borders.' Indeed, the United States now extends aggressively its criminal laws to activity occur- ring halfway around the globe.2 Yet this energetic boom of extraterritorial jurisdiction throws into sharp relief a variety, of opposing legal interests: most prominently, those of the foreign individuals to whom the United States subjects its laws. Are there constitutional limits on the ability of the United States to project its criminal laws anywhere in the world, and to anyone it likes? If so, what are they, in what constitutional provisions do they reside, and are they enforceable in U.S. courts? And importantly, if such limits ex- ist, do they hamper the ability of the United States effectively to prosecute dangerous criminals for extraterritorial activity? Given the unprecedented scope of jurisdiction that the United States now claims, the current fight against extraterritorial crime envisages novel legal clashes raising precisely these types of questions. And yet despite their centrality to pressing issues of the day, such as the criminal law front to the war on terror, these questions have been left largely untouched by commentators3 and unresolved by courts.4 *Associate in Law, Columbia Law School. Special thanks go to the lovely Carrie Rief. I would also like to thank Gerry Neuman, Mike Doff, Jose Alvarez, Rob Sloane, Debra Livingston, and Harold Edgar, as well as participants in the Associates Workshop at Columbia Law School. 1. See United States v. Verdugo-Urquidez, 494 U.S. 259, 281 (1990) (Brennan, J., dissenting) (quot- ing V. Rock Grundman, The New Imperialism: The Extraterritorial Application of United States Law, 14 INT'L LAw. 257, 257 (1980)). 2. See, e.g., United States v. Yousef, 327 E3d 56 (2d Cit. 2003); United States v. Yunis, 924 F2d 1086, 1091 (D.C. Cit. 1991); United States v. Bin Laden, 92 E Supp. 2d 189 (S.D.N.Y 2000). 3. See Jordan J. Paust, Federal Jurisdiction over Extraterritorial Acts of Terrorism and Nonimmunity for For- eign Violators of International Law Under FISA and the Act of State Doctrine, 23 VA. J. INT'L L. 191 (1983) (arguing that U.S. legislation does not adequately allow the United States to assert jurisdiction over terrorist acts prohibited under international law); Paul B. Stephan III, Constitutional Limits on the Struggle Against International Terrorism: Revisiting the Rights of Overseas Aliens, 19 CONN. L. REv. 831 (1986) (argu-

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